The Cato Institute filed this amicus brief in Refugee and Immigrant Center for Education and Legal Services v. Noem in the United States Court of Appeals for the District of Columbia Circuit. The purpose of the brief is to respond to the government’s factual claims regarding the situation at the US border.

On January 20, 2025—Inauguration Day—President Trump issued “Proclamation 10888—Guaranteeing the States Protection Against Invasion.” The Proclamation claimed that the current scheme as set out in the Immigration and Nationality Act, 8 U.S.C. § 1101 et seq., was overwhelmed and no longer effective. According to the Proclamation, the extant scheme under the Immigration and Nationality Act was “wholly ineffective in the border environment,” and as such was no longer able to prevent “aliens posing threats to public health, safety, and national security from entering the United States …” or to “screen all illegal aliens crossing the southern border for communicable diseases of public-health concern.”

These two assumptions, upon which the entire Proclamation rests, are plainly incorrect. First, border crossings had already fallen to manageable levels before the Proclamation was issued. That decline was due to economic factors and migration restrictions in other countries rather than U.S. asylum restrictions. Therefore, relevant evidence does not indicate that the district court’s order will cause an unmanageable increase in border crossings or require the Department of Homeland Security (DHS) to return to “large-scale releases” of noncitizens. Second, evidence does not support the government’s assertions of a connection between border apprehension numbers and DHS’s ability to interdict drugs or perform other law enforcement duties at the border, and so there is no reason to expect that any increase in border crossings would detract from these other DHS operations.

The government’s assertions are based on either misinterpretations or tortured readings of the data, attempting to find justification for a spurious legal argument in facts that simply are not there.